Opposition Brief — Reece v. Houston Lighting & Power Co.

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a Supreme Court, U.S

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~ AUS 28 1996

No. 96-52 | CLERK

In The _

Supreme Court of the United States

October Term, 1995

RAYMOND REECE,

Petitioner,

HOUSTON LIGHTING & POWER COMPANY,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI

L. CHAPMAN SMITH

Counsel of Record

MattHew P. Eastus

Baker & Borrts, L.L.P.

910 Louisiana

Houston, Texas 77002

(713) 229-1234

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Fifth Circuit correctly interpreted this Court’s precedents

in holding that, under the narrow factual scenario pre-

sented, Petitioner’s state-law claims were preempted by

federal labor law, and therefore removable, because they

required an interpretation of a collective bargaining

agreement.

PARTIES TO THE PROCEEDINGS

Petitioner:

RAYMOND REECE :

Respondent:

HOUSTON LIGHTING & POWER COMPANY

Entities affiliated with Respondent:

DEVELOPMENT VENTURES, INC.; HOUSTON INDUS-

TRIES INCORPORATED; HOUSTON INDUSTRIES

FINANCE, INC.; HOUSTON INDUSTRIES ENERGY,

INC.

iii

TABLE OF CONTENTS

Page

MPR EME SOMMER OED 6s obivs nce dccccpcsencncecs i

PARTIES TO THE PROCEEDINGS................. ii

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STATUTORY PROVISIONS INVOLVED IN THIS

RSs a kek CCU hse ewes nodes Kho 4 op aon des Xs vee 2

PRsuR EEE ER MME BECEY GINO 6 bck ce ace ees ecscess 2

A. Course of Proceedings and Disposition in

ge reer ee Pree ee 2

i OM boca vase Ss cus cb seves d's 4

REASONS WHY THE WRIT SHOULD BE DENIED .. 5

I. Seniority Disputes, Such as the One Raised

by Petitioner, are Redressable Through the

Grievance-and-Arbitration Machinery........ 5

II. Because the Decision Below Did Not Rely

Solely on the Preemption of Petitioner’s Statu-

tory Race Discrimination Claim as a Basis For

Denying Remand, This Case Does Not Repre-

sent an Appropriate Vehicle for Reaching the

Merits of the Central Issue Raised in the Peti-

| a ASW ee eae eg Se CCL PETE Te Pero E ee EERE 8

A. Despite Petitioner’s Attempt to Com-

mingle His Causes of Action Under the

Heading of “Employment Discrimination

Complaints,” He Has Pleaded Two Inde-

EE eae ceryy vache sb.0 bec » 8

B. The Preemption of Petitioner’s Emotional

Distress Claim, Which Is Substantially

Dependent on an Analysis of the CBA,

Adequately Supports the Judgment...... 11

TABLE OF CONTENTS - Continued

Page

III. Because the Court of Appeals Correctly and

Narrowly Applied This Court’s Decision in

Lingle in Connection With Petitioner’s Dis-

crimination Claim, the Purported Conflict

With the Decisions of This Court is Illusory

A. The Court of Appeals Used the Proper

Test for LMRA Preemption .............

B. The Court of Appeals Correctly Followed

Lingle’s Holding That a “Nonnegotiable”

State-Law Right Must Succumb to LMRA

Preemption in Certain Instances.........

1. Lingle Contemplated the Preemption

of “Nonnegotiable” Rights...........

2. Petitioner’s “Nonnegotiable” Statu-

tory Right is Preempted in This Case

Because Resolution of the Claim is

Substantially Dependent Upon an

Interpretation of the CBA...........

IV. Petitioner’s Objections to an “Undesirable

Litigation Dynamic” Resulting from Avco Do

Not Justify Granting the Writ...............

CAINE AAO Sh ha a Saecdh woud beaReweks ena uawe as

Pe ee eT eT te

TABLE OF AUTHORITIES

Page

| CasEs

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) ... . passim

Austin State Hosp. v. Kitchen, 903 S.W.2d 83 (Tex.

Ot. AG PUIG sry cacess sce ee ee: 22, 24

Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557

(AOS 0's woes vueepsapiaetasvpere oa eee ay as oe

Bagby v. General Motors Corp., 976 F.2d 919 (5th Cir.

WOU IG a ticcsbwisexakes diet, De, 12

Baker v. Farmers Elec. Co-op., Inc., 34 F.3d 274 (5th

(OM: RRO ctiee vance ccuneewewel Ghee 13

Black v. Cutter Labs., 351 U.S. 292 GRO a ae 555K 8

Bowen v. United States Postal Serv., 459 U.S. 212

GEROUE 50> avon Waser ea iee eae CeEee Lae 27

Bradshaw v. General Motors Corp., Fisher Body Div.,

OOD mae 2G (Ok ie, FOO ooo in ss 12

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987)....... 28

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)................... 8

Cole v. General Motors Corp., 641 F. Supp. 28 (W.D.

POSE ROOD sos ns doee cans Ap teisinhinint aa EMM oe een. 21

Cook v. Fidelity Inv., 908 F. Supp. 438 (N.D. Tex.

SIPAD s 9 a2 99 0:0. ld Vind Vigo ¥ ay MOR ER re 10

Davis v. Johnson Controls, Inc., 21 F.3d 866 (8th

Cir.), cert. denied, 115 S. Ct. 426 RGR Sie: oes |

DeCoe v. General Motors Corp., 32 F.3d 212 (6th Cir.

bg EERE ET PPLE PCT Ee ee ee 12, 22

TABLE OF AUTHORITIES - Continued

Page

Douglas v. American Info. Technologies Corp., 877

F.2d 565.(7Gs Cis. 1989) a3 ssc ede sncas Soave seees 12, 17

DuPuis v. International Bhd. of Elec. Workers, Local

58, 119 L.R.R.M. (BNA) 2033 (E.D. Mich. 1984) ..... 6

Fristoe v. Reynolds Metals Co., 615 F.2d 1209 (9th

Cir. 1986) (per curiam) «2.0665 cccesccsccsinsicedoces 3

Graef v. Chemical Leaman Tank Lines, 860 F. Supp.

1170 €8.D, ‘Tee: TORRE ik ia oe en FER eee ees 11

Hawaiian Airlines, Inc. v. Norris, 114 S. Ct. 2239

1h. | ner erine Trt rier re wren. ope ree 19

Helvering v. Gowran, 302 U.S. 238 (1937)...........46- 8

Humphrey v. Moore, 375 U.S. 335 (1964)............... 7

International Bhd. of Elec. Workers, AFL-CIO v.

Hechler, 481 U.S. 851 (1987).......00006000 12, 17, 19

Jackson v. Liquid Carbonic Corp., 863 F.2d 111 (1st

Cir. 1988), cert. denied, 490 U.S. 1107 (1989) ....... 29

John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543

(TOGA) a ican 5 vse clea cwnln Cad oe 0a ene eka ena eS ee 5, 6

Johnson v. Anheuser Busch, Inc., 876 F.2d 620 (8th

Che, 1969) <.. ins ni-v:0010evin gas wi ewd vanced Ree a ee SEE 12

Johnson v. Merrell Dow Pharmaceuticals, Inc., 965

F.2d 31 (5th Cir. 1992) (per curiam)............... 10

Kelly v. American Tel. & Tel. Co., Civ. No. 91-179-

P-H, 1993 WL 206289 (D. Me. Apr. 20, 1993)....... 6

Knafel v. Pepsi Cola Bottlers of Akron, Inc., 850 F.2d

1185 (6th Cir. 1966). 0. cveseessccevnssyedeuebasan 12

Vii

TABLE OF AUTHORITIES —- Continued

Page

Leonardis v. Burns Int'l Sec. Servs., Inc., 808 F. Supp.

DOE MAP ies GRMEE ote ha dew inis ceurpees ies Cie His 22

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399

6 RRS Sit SRS Ror ee Sa a passim

Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95

| 5 A Spee Serer Tore Port rae 3, 26, 27, 29

Lorance v. AT&T Technologies, Inc., 490 U.S. 900

SR dhe ax Aa CANKER NESS Oa COCR TERN ERED Seder eK Cs 5

MacArthur v. University of Tex. Health Care Ctr. at

tet, 4S FOG GO (SGN Cig, U9FS) i cos esc ceeececsen 9

McCormick v. AT&T Technologies, Inc., 934 F.2d 531

(4th Cir. 1991), cert. denied, 502 U.S. 1048 (1992) .... 12

Mock v. T.G.&Y Stores Co., 971 F.2d 522 (10th Cir.

ae es Fa OAR Ore UE ae Ch A ok FER ahi ne k's 12

Newberry v. Pacific Racing Assn., 854 F.2d 1142 (9th

RG neha os ee Sales ES RE eas ce Oe tk OURS eo be 12

Oklahoma Tax Commission v. Graham, 489 U.S. 838

Re ie hay eee ite wee Eee eee ae oe sew 28

Public Fin. Corp. v. Davis, 360 N.E.2d 765 (Ill. 1976) .... 17

Ramirez v. Fox Television Station, 998 F.2d 743 (9th

Re I A clea Pe a ae ae a oe 21

Rodriguez v. Pacificare of Tex., Inc., 980 F.2d 1014

(5th Cir.), cert. denied, 508 U.S. 956 (1993)......... 11

Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483

Tie MORNE rr Poe eres isc hee 10

Smith v. Evening News Ass’n, 371 U.S. 195 (1962) .... 28

Sommerville v. United States, 376 U.S. 909 (1964) ...... 8

Vili

TABLE OF AUTHORITIES —- Continued

Page

Square Liner 360 Degrees, Inc. v. Chisum, 691 F.2d

362 (Othe Che, I9GZ) eines sccctsecndtuvsscistanvetian 26

Stikes v. Chevron U.S.A., Inc., 914 F.2d 1265 (9th Cir.

1990), cert. denied, 500 U.S. 917 (1991)........ 13, Zi, 22

Stinnett v. Williamson County Sheriff's Dep’t, 858

S.W.2d 573 (Tex. Ct. App. 1993)......--sseeeeeeeee 10

Texas Dep’t of Human Servs. v. Hinds, 904 S.W.2d

G29 CROK, LINO) bike bach skcecevsssasanevases 22, 23, 24

Texas v. Hopwood, No. 95-1773 (U.S. July 1, 1996)..... 8

The Monrosa v. Carbon Black Export, Inc., 359 U.S.

BOD SIRs civ ccs casncskacvnad ts is thence reeds ete ies 8

Thomas v. LTV Corp., 39 F.3d 611 (5th Cir. 1994) ....13, 17

Trailmobile Co. v. Whirls, 331 U.S. 40 (1947)........... 5

Truex v. Garrett Freightlines, Inc., 784 F.2d 1347 (9th

oe. Serer resp pre cer err errors CTT trie Tees 12

Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239

CE CIE DES) isc ee cde s ee ianeeeeee Ebr neien ders ses 9

United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56

CRUE iis had rae ie Giles < Su tcede deine h Reed ks 4 oatieas 7

United States v. Cronic, 466 U.S. 648 (1984).......... 26

United Steelworkers v. American Mfg. Co., 363 U.S.

BOR TEI gine one ricaes tess BERET ork Oey s Kersh ae 6

United Steelworkers v. Rawson, 495 U.S. 362 (1990)

UES PT ET eT TL ee 3, 12, 19

United Steelworkers v. Warrior & Gulf Navigation

Co., 363 US. 574 (1960). 0.2.0. cccciccercccveser eves 29

TABLE OF AUTHORITIES - Continued

Page

STATUTES

pe TOPE ELE Tee’ Cie CePEe TORT eee 2

Se Aen llc vagantalsocre he thew rscevSbventes 1

UALS. kok beh ac hapnsa db peed ebbbecs one 1

Sey ML MEG a a FG CRG VA avs eRi6bn Ké VK se eho eee08’s 2

Texas Labor Code Ann. ch. 21 (Vernon Supp.

PN ete W ioc seechsenerevis sence veeeteoe ay 9, Za

Labor Management Relations Act (LMRA), 29

tA ade 8 | rae passim

Railway Labor Act (RLA), 45 U.S.C. §§ 151-188

| PSE Pe hee ae Ree te ye a pe nee 19

MISCELLANEOUS

Lex K. Larson, Employment Discrimination (1996) .... 10

Rebecca Hanner White, Preemption of State Law

Claims: A Model for Analysis, 41 Ala. L. Rev. 377

Bn ee FT ETO TEE LC Pee PTE) oP Pee ee Poe ee 14

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

Respondent requests that the Court deny the Petition

for Certiorari (“Petition”) seeking review of a decision by

the United States Court of Appeals for the Fifth Circuit

because this is a seniority dispute subject to a grievance-

and-arbitration procedure, because there exists an ade-

quate and independent basis for removal, because the

Fifth Circuit’s decision correctly interpreted the law, and

because Petitioner’s prediction of dire consequences for

the judicial system arising from the decision below

wholly lacks merit.

OPINIONS BELOW

The opinion of the court of appeals is reported at 79

F.3d 485 (5th Cir. 1996), petition for cert. filed, 65 U.S.L.W.

3084 (U.S. July 9, 1996) (No. 96-52), and appears in the

Appendix to this brief at la-5a. The pertinent orders of

the district court are reported at 66 Empl. Prac. Dec.

(CCH) ¥ 43,680 (S. D. Tex. 1995), and 151 L.R.R.M. (BNA)

2477 (S. D. Tex. 1995). They are printed at App. 6a-13a

and 14a-17a..

JURISDICTION

The district court had jurisdiction over this case pur-

suant to 28 U.S.C. § 1331 (1994) in that this action arose

under the laws of the United States, specifically the Labor

Management Relations Act (“LMRA”), 29 U.S.C.

§§ 141-187 (1994). The court of appeals had jurisdiction to

review the district court’s final judgment under 28 U.S.C.

§ 1291 (1994). Petitioner attempts to invoke this Court’s

jurisdiction pursuant to 28 U.S.C. § 1254(1) (1994).

STATUTORY PROVISIONS INVOLVED IN THIS CASE

This case implicates § 301(a) of the LMRA, 29 U.S.C.

§ 185(a), and the removal statute, 28 U.S.C. § 1441(1994).

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition in the

Courts Below.

Petitioner Raymond Reece (“Petitioner”) is a current

employee of Respondent Houston Lighting & Power

Company (“Respondent”). His employment is subject to a

collective bargaining agreement (“CBA”) between

Respondent and the International Brotherhood of Electri-

cal Workers, Local Union No. 66. In his Original Petition

in Texas state court, Petitioner complained of being

denied promotions and training opportunities out of line

of his seniority as provided by the CBA. Respondent

answered and removed the case to the United States

District Court for the Southern District of Texas on the

ground that a federal question was necessarily presented

under Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557

(1968). Petitioner ostensibly pleaded causes of action for

intentional infliction of emotional distress under Texas

common law and for race discrimination and retaliation

under the Texas Labor Code Ann. §§ 21.051, -.055 (Vernon

ee EM RTT NO TST rT me em

Supp. 1995).! Because the resolution of those claims

would have required the interpretation of applicable col-

lective bargaining agreement (“CBA”) provisions dealing

with seniority, training, and promotions, § 301 of the

LMRA preempted both of Petitioner’s causes of action.

1 Petitioner avers that he “deliberately confined his

allegations to violations of state law, and pleaded no claim

under . . . any other federal law.” (Pet. at 4.) Petitioner’s artful

pleading is of no consequence in determining whether the

district court had jurisdiction. As Petitioner is surely aware, but

has conveniently neglected to mention, because Congress

intended for “doctrines of federal labor law uniformly to prevail

over inconsistent local rules,” Local 174, Teamsters v. Lucas Flour

Co., 369 U.S. 95, 104 (1962), this Court has concluded that the

preemptive force of § 301 is so powerful that it displaces any

state-law cause of action alleging, in form or substance, a breach

of a collective bargaining agreement. Lingle v. Norge Div. of

Magic Chef, Inc., 486 U.S. 399, 406 n.5 (1988). Furthermore, the

Court has interpreted § 301 to preempt causes of action other

than those denominated as breach of contract claims, see, e.g.,

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 218-19 (1985), so that

the LMRA recharacterizes state-law claims that would require

interpretation of a CBA into claims arising under federal law.

See United Steelworkers v. Rawson, 495 U.S. 362, 366-67 (1990);

Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980)

(per curiam) (“Mere omission of reference to LMRA § 301 in the

compiaint does not preclude federal subject matter jurisdiction.

The court’s recharacterization of Fristoe’s complaint as one

arising under § 301 is required by federal pre-emption doctrine.

When principles of federal labor law are involved, they

supersede state contract law or other state law theories.”). Thus,

how Petitioner chose to style his claims has no bearing on

whether those claims actually present a controversy arising

under federal law.

The district court denied Petitioner’s motion to

remand. (App., infra, 14a.) Petitioner then sought recon-

sideration of the order denying remand, which the dis-

trict court also denied, concluding that § 301 preempted

Petitioner’s causes of action because they involved “ques-.

tions of promotability, seniority, and work assignments,”

which rendered them “inextricably intertwined with the

terms of the CBA.” (App., infra, 16a.) Subsequently,

Respondent moved for summary judgment on the ground

that Petitioner failed to exhaust his contractual remedies

and that his claims were time-barred. The district court

granted Respondent’s motion, finding no basis for Peti-

tioner’s failure to invoke the contractually exclusive

grievance-and-arbitration procedures. (App., infra, 12a.)

Petitioner appealed, but he sought review only of the

denial of his motion to remand, not of the summary

judgment. The United States Court of Appeals for the

Fifth Circuit affirmed the order denying remand, con-

cluding that, under Lingle, 486 U.S. at 407 n.7, Petitioner’s

statutory discrimination claim was inextricably inter-

twined with the CBA, notwithstanding the “nonnego-

tiable” nature of the rights he purported to invoke. (App.,

infra, 3a.) Alternatively, the Fifth Circuit held that Peti-

tioner’s common law emotional stress claim was also

preempted, which likewise supported removal. (App.,

infra, 3a-4a.)

B. Statement of Facts.

The opinion of the Fifth Circ*zit correctly sets forth

the facts of the case. In the interest of brevity, Respondent

respectfully directs the Court’s attention to that opinion.

(App., infra, 1a-2a.)

REASONS WHY THE WRIT SHOULD BE DENIED

I. Seniority Disputes, Such as the One Raised by Peti-

tioner, are Redressable Through the Grievance-and-

Arbitration Machinery.

Seniority is at the heart of Petitioner’s case. Peti-

tioner’s theory of recovery centers on the allegation that

“white employees with less seniority than he” received

training and promotions to which he was entitled. (Pet. at

3 (emphasis added).). Seniority is one of the factors for

consideration in selecting and assigning employees, such

as Petitioner. “Seniority” is also the subject of an entire

article of the CBA. (R. at 000079-75.)

This Court long ago recognized that “[s]Jeniority

arises only out of contract or statute. An employee has no

inherent right to seniority in service. . . . In private

employment seniority is typically created and delimited

by a collective bargaining agreement.” Trailmobile Co. v.

Whirls, 331 U.S. 40, 53 n.21 (1947) (citations omitted).

Unless a party contends that an entire seniority system is

discriminatory,? a contention Petitioner has never

advanced, disputes about the seniority provisions cf a

CBA are not redressable under federal or state anti-

discrimination laws or common-law tort theories, but

rather through the contractual grievance-and-arbitration

machinery or a suit under § 301 of the LMRA. See John

Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 554 (1964)

2 See Lorance v. AT&T Technologies, Inc., 490 U.S. 900, 904-05

(1989).

(“There is thus no question that had a dispute concerning

any of these subjects, such as seniority rights or sever-

ance pay, arisen between the Union and [Inter-

science][,] . . . it would have been arbitrable.”); United

Steelworkers v. American Mfg. Co., 363 U.S. 564, 566-68

(1960) (holding that dispute over reinstatement of

employee under seniority provision was subject to man-

datory arbitration clause).? Petitioner’s claims present

just the sort of garden variety seniority disputes that the

Court in John Wiley & Sons indicated are subject to arbi-

tration.*

Petitioner believes his seniority should have entitled

him to various promotions and training opportunities.

The CBA, however, governs work assignments (such as

3 See also Kelly v. American Tel. & Tel. Co., Civ. No. 91-179-

P-H, 1993 WL 206289, at *5 (D. Me. Apr. 20, 1993) (“The CBA

between AT&T and IBEW is the immediate source of the

plaintiff’s rights concerning seniority, vacation, and shift

choices. Because her claims are substantially dependent on the

terms of the CBA, the LMRA preempts them. . . . ”); DuPuis v.

International Bhd. of Elec. Workers, Local 58, 119 L.R.R.M. (BNA)

2033, 2035-36 (E.D. Mich. 1984) (stating that “[sJeniority . . . has

long been a quintessential issue of collective bargaining” and

holding that employee’s common law breach of contract action

concerning seniority rights was preempted by § 301).

4 The CBA between Respondent and IBEW Local No. 66

provides for the arbitration of any grievance and defines a

“grievance” as: “[A]ny dispute involving the proper application

or interpretation of this Agreement, or a claim that an employee

has been unreasonably and unjustly discriminated against.”

(CBA, art. XVI, § 1; R. at 000082.) The CBA also provides that

“[t]here shall be no unlawful discrimination against an

employee by the Company, Union or any other employee

because of race, color, disability, religion, age (over 40), sex or

national origin. The same standards will apply to veterans of the

Vietnam era.” (CBA, Purpose; R. at 000107.)

training) and promotions for employees having Peti-

tioner’s job classification. (CBA, art. XV, § 6; R. at 000085.)

A determination of the extent to which the CBA required

that Respondent consider Petitioner’s seniority in making

these sorts of decisions would necessarily have entailed a

construction of the CBA. The need for a state court to

interpret Petitioner’s seniority rights in order to adjudi-

cate his causes of action leads to their preemption by the

LMRA. See Davis v. Johnson Controls, Inc., 21 F.3d 866, 868

(8th Cir.) (holding that state-law discrimination claim was

preempted where court would “interpret[ ] the provisions

of the [collective bargaining] agreement relating to

seniority rights”), cert. denied, 115 S. Ct. 426 (1994); cf.

United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 63-64

(1981) (“Although the present case involves a fairly mun-

dane and discrete wrongful-discharge complaint, the

grievance and arbitration procedure often processes dis-

putes involving interpretation of critical terms in the

collective bargaining agreement affecting the entire rela-

tionship between company and union.”); Humphrey v.

Moore, 375 U.S. 335, 343-44 (1964) (stating that dispute

concerning seniority rights of all employees, even if

brought in state court, was “one arising under § 301 of

the Labor Management Relations Act and is a case con-

trolled by federal law”) (citations omitted).

II. Because the Decision Below Did Not Rely Solely on

the Preemption of Petitioner’s Statutory Race Dis-

crimination Claim as a Basis For Denying Remand,

This Case Does Not Represent an Appropriate

Vehicle for Reaching the Merits of the Central Issue

Raised in the Petition.

A. Despite Petitioner’s Attempt to Commingle His

Causes of Action Under the Heading of

“Employment Discrimination Complaints,” He _

Has Pleaded Two Independent Claims.

This Court has stated on numerous occasions that it

“reviews judgments, not opinions.” See Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,

842 (1984); Black v. Cutter Labs., 351 U.S. 292, 297 (1956)

(same); Texas v. Hopwood, No. 95-1773, slip op. at 1 (U.S.

July 1, 1996) (opinion of Ginsberg, J., concerning denial of

petition for writ of certiorari). Pursuant to this rule, “if

the decision below is correct, it must be affirmed,

although the lower court relied upon a wrong ground or

gave a wrong reason.” Helvering v. Gowran, 302 U.S. 238,

245 (1937). Accordingly, this Court has declined to review

cases when there exists an adequate and independent

basis to support the judgment. See, e.g., Sommerville v.

United States, 376 U.S. 909 (1964) (denying certiorari

despite a live conflict regarding whether federal or state

law controlled because it was evident that the resolution

of that conflict could not change the result reached

below); The Monrosa v. Carbon Black Export, Inc., 359 U.S.

180, 184 (1959) (“While this court decides questions of

public importance, it decides them in the context of

meaningful litigation. Its function in resolving conflicts

among the Courts of Appeals is judicial, not simply

administrative or managerial. Resolution here of the

[issue in conflict among the circuits] can await a day

when the issue is posed less abstractly.”). That principle

applies to this case because the preemption of Petitioner’s

emotional distress claim warranted denial of the motion

to remand whether or not Petitioner’s discrimination

claims were preempted.

Petitioner seeks to conflate his disparate claims

under the heading of “employment discrimination com-

plaints.” (Pet. at 8.) In particular, he styles his claims

under the Texas Labor Code as a “statutory discrimina-

tion claims”5 and his emotional distress cause of action as

a “tortious discrimination claim.” (Id. at 7.)® Petitioner

may not avoid the adequate and independent basis rule

by reformulating his causes of action at this stage of the

proceedings. Petitioner pleaded two independent causes

of action, one for the state-law tort of intentional inflic-

tion of emotional distress, and another for race discrimi-

nation and retaliation in violation of the Texas Labor

Code §§ 21.051, -.055. (App., infra, 2a-3a.)

Texas law holds that the tort of intentional infliction

of emotional distress does not encompass “mere employ-

ment disputes,” and the tort does not apply to discrimi-

nation claims. MacArthur v. University of Tex. Health Care

Ctr. at Tyler, 45 F.3d 890, 898-99 (5th Cir. 1995) (applying

Texas law); Ugalde v W.A. McKenzie Asphalt Co., 990 F.2d

239 (Sth Cir. 1993) (applying Texas law) (holding that

calling employee “Mexican” and “wetback” was not

actionable in tort and stating that “[e]ven conduct which

5 Id. at 6.

attempting to recharacterize “his racial discrimination claim in

the form of the tort of intentional infliction of emotional

distress”).

ee ee EE

may be illegal in an employment context may not be the

sort of conduct constituting extreme and outrageous con-

duct”); Cook v. Fidelity Inv., 908 F. Supp. 438, 441 (N.D.

Tex. 1995) (applying Texas law) (“Cook’s allegations in

connection with this [emotional distress] claim are dupli-

cative of his allegation supporting his racial discrimina-

tion claims. The allegations do not give rise to an

additional claim for intentional infliction of emotional

distress.”). Indeed, absent federal and state anti-

discrimination statutes, the common law generally does

prohibit discrimination on any basis by a private

employer. See Lex K. Larson, Employment Discrimination

§ T117.10, at T-2895 to T-2896 (1996) (“Congress enacted

these [antidiscrimination] laws against the backdrop of

an established doctrine of American employment law,

under which an employer can discharge an employee at

will ‘for good cause, for no cause or even for cause

morally wrong.’ Outside of the discrimination laws and

some special purpose statutes, there is simply no general

statutory law which alters this basic rule.”). Petitioner’s

exclusive remedy for employment discrimination under

Texas law is an action under chapter 21 of the Texas

Labor Code. See Schroeder v. Texas Iron Works, Inc., 813

S.W.2d 483, 488 (Tex. 1991) (stating that provisions of

Texas antidiscrimination statute are “mandatory and

exclusive”); see also Stinnett v. Williamson County Sheriff's

Dep’t, 858 S.W.2d 573, 576 (Tex. Ct. App. 1993).

In this case, the adverse employment decisions, irre-

spective of their motivation, constituted the “outrageous”

conduct giving rise to the tort claim.”? By contrast,

7 Such conduct is arguably not even actionable under the

claimed tort theory. Johnson v. Merrell Dow Pharmaceuticals, Inc.,

Petitioner’s statutory discrimination claims are depen-

dent upon Respondent's alleged racial animus in making

various employment decisions. (Pet. at 12.) Petitioner’s

two causes of action are thus self-contained and distinct.

B. The Preemption of Petitioner’s Emotional Dis-

tress Claim, Which Is Substantially Dependent

on an Analysis of the CBA, Adequately Sup-

ports the Judgment.

The Court should deny the Petition because preemp-

tion of the tort claim provided an independent basis for

removal and the denial of remand. Petitioner only

appealed the district court’s denial of his motion to

remand, not the summary judgment. The Fifth Circuit

found that both of Petitioner’s claims were preempted by

the LMRA and that remand was properly denied. (App.,

infra, 3a, 5a.) Only one of Petitioner’s claims need be

preempted in order to support removal,’ and preemption

of the emotional distress claim would support the judg-

ment below even if the court of appeals’ disposition of

Petitioner’s statutory discrimination claim were reversed.

The test for preemption of a state-law tort claim is

well-settled: the LMRA preempts “when resolution of a

state-law claim is substantially dependent upon analysis

of the terms of an agreement made between the parties in

965 F.2d 31, 33-34 (5th Cir. 1992) (per curiam) (applying Texas

law).

8 Graef v. Chemical Leaman Tank Lines, 860 F. Supp. 1170,

1172-74 (E. D. Tex. 1994). See also Rodriguez v. Pacificare of Tex.,

Inc., 980 F.2d 1014, 1016-19 (5th Cir.) (holding that district court

had supplemental jurisdiction over non-preempted claims

under 28 U.S.C. § 1367), cert. denied, 508 U.S. 956 (1993).

ee ee eee Oe

a labor contract.” Lueck, 471 U.S. at 220; see also Interna-

tional Bhd. of Elec. Workers, AFL-CIO v. Hechler, 481 U.S.

851, 858 (1987) (“[A] tort claim ‘inextricably intertwined

with the consideration of the terms of the labor contract’

is preempted under § 301... . ”). Under this test, the

Court held in Lueck,? Hechler,!° and United Steelworkers v.

Rawson"! that the tort claims at issue could not survive

LMRA preemption because they could not “be described

as independent of the collective-bargaining agreement.”

Rawson, 495 U.S. at 371. Similarly, numerous courts of

appeals have held that the LMRA generally preempts

claims for intentional infliction of emotional distress

when the claims relate to terms and conditions of

employment and are largely dependent on the terms of a

CBA.!2

9 471 U.S. at 211.

10 481 U.S. at 859.

11 495 U.S. 362, 371 (1990).

12 See, e.g., DeCoe v. General Motors Corp., 32 F.3d 212, 219-20

(6th Cir. 1994); Bagby v. General Motors Corp., 976 F.2d 919, 921-22

(5th Cir. 1992); Mock v. T.G.&Y Stores Co., 971 F.2d 522, 530 (10th

Cir. 1992); McCormick v. AT&T Technologies, Inc., 934 F.2d 531,

536-37 (4th Cir. 1991) (en banc), cert. denied, 502 U.S. 1048 (1992);

Douglas v. American Info. Technologies Corp., 877 F.2d 565, 572 (7th

Cir. 1989); Johnson v. Anheuser Busch, Inc., 876 F.2d 620, 624 (8th

Cir. 1989); Newberry v. Pacific Racing Ass’n, 854 F.2d 1142,

1149-50 (9th Cir. 1988); Knafel v. Pepsi Cola Bottlers of Akron, Inc.,

850 F.2d 1155, 1162 (6th Cir. 1988); Bradshaw v. General Motors

Corp., Fisher Body Div., 805 F.2d 110, 111 (3d Cir. 1986); Truex v.

Garrett Freightlines, Inc., 784 F.2d 1347, 1350 (9th Cir. 1985).

The circumstances of this case demonstrate that Peti-

tioner’s emotional distress claim is preempted. Under

Texas law, for Petitioner to sustain his emotional distress

claim he must prove! that “(1) the defendants acted

intentionally or recklessly; (2) the defendants’ conduct

was extreme and outrageous; (3) the defendants’ actions

caused . . . [Petitioner’s] emotional distress; and

(4)... [Petitioner’s] emotional distress was severe.” Baker

v. Farmers Elec. Co-op., Inc., 34 F.3d 274, 280 (5th Cir. 1994)

(applying Texas law). If any of the elements of Peti-

tioner’s emotional distress claim requires an interpreta-

tion of the CBA, § 301 preempts it. Stikes v. Chevron

U.S.A., Inc., 914 F.2d 1265, 1268 (9th Cir. 1990), cert.

denied, 500 U.S. 917 (1991).

The “outrageous” conduct on which Petitioner relies

pertains to basic employment-related matters such as

seniority, promotion, and training — all of which are regu-

lated by the CBA. (R. at 000053-52.) Petitioner alleges,

inter alia, that “the conduct of HL&P as described above”

in his Original Petition caused him to suffer “great anxi-

ety, mental anguish, indignation, disappointment and

wounded pride.” (Pl.’s Orig. Pet. { VI; R. at 000053.) The

“described above” conduct appears in Paragraph V of the

Original Petition, which detailed the promotions and

training opportunities denied Petitioner, allegedly in vio-

lation of the CBA’s seniority provisions. (R. at 000053.)

To establish this claim, Petitioner must prove that the

promotions that were denied to him, the misapplication

13 In Texas, “the employee has the burden of proving

wrongful conduct by the employer.” Thomas v. LTV Corp., 39

F.3d 611, 619 (5th Cir. 1994) (applying Texas law).

of the seniority preference in such decisions, and that the

refusals of his requests for training classes constituted

“extreme and outrageous” conduct. This burden entails

proof that the employer’s actions or decisions were

wrongful, i.e., that at a minimum they violated the CBA.

For this reason alone Petitioner’s claim is preempted.

Thomas, 39 F.3d at 619 (“Thomas must demonstrate that

LTV’s conduct was wrongful under the circumstances. To

determine whether LTV’s conduct was wrongful under

the circumstances, an analysis of the collective bargaining

agreement is necessary.”). As one commentator has

noted, “[w]hen the conduct arises out of the employer-

employee relationship and a collective bargaining agree-

ment is in place, the employer’s conduct necessarily must

be examined against the contract. . . . That inquiry itself,

moreover, involves a question of federal contract inter-

pretation, thus preempting the claim.” Rebecca Hanner

White, Preemption of State Law Claims: A Model for Anal-

ysis, 41 Ala. L. Rev. 377, 420 (1989) (citing Newberry, 854

F.2d at 1146; Knafel, 850 F.2d at 1162); see also Truex, 784

F.2d at 1350.

The CBA contains the following provisions with

regard to the selection, promotion, transfer, and/or

assignment of employees covered thereby, including

“Head Journeymen,” Petitioner’s classification:

Selection, promotion, demotion, transfer and/or

assignment of Head Journeymen and Head Opera-

tors listed in this article or elsewhere in this

Agreement shall be within the sole discretion of

the Company, and shall be with the approval of

the Department Head. Consideration may

Re RE eg TRE

include, but is not limited to, ability, skill, quali-

fications, performance, seniority, attendance,

and conduct.!4

Except as to Head Journeymen and Head Opera-

tors as described in Article XI, Section 6, in the

event of promotions, layoffs, or a permanent

reduction in the working force, where ability,

skill and qualifications are equal, seniority shall

govern. When Company determines to transfer

employees from one location to another, Com-

pany will request volunteers and select the

senior volunteers where ability, skill and quali-

fications are equal; if there are not sufficient

volunteers with the required ability, skill and

qualifications, Company will select the

employees with the least seniority where ability,

skill and qualifications are equal. The Company

shall determine ability, skill and qualifications,

subject to an employee’s right to assert a griev-

ance under Article XVI. Promotions to positions

not covered by the Agreement shall be within

the sole discretion of the Company. Temporary

positions may be filled at the discretion of the

Company. With the exception of replacements or

promotions made necessary because of illness or

leaves of absence, a temporary position shall not

exceed ninety (90) work days.!°

“Seniority” is defined in art. XVII, §§ 5-6:

Section 1. An employee shall be considered a

probationary employee and shall not acquire

any seniority until completion of one hundred

fifty (150) work days in the employ of the Com-

pany. During such period, said employee’s

employment may be terminated at any time

14 CBA, art. XV, § 6; R. at 000085 (emphasis added).

15 CBA, art. XVII, § 3; R. at 000076 (emphasis added).

aaa

with or without cause. After such period, said

employee shall be a regular employee and his

seniority shall date from his original date of

employment. If two or more employees have the |

same original date of employment, their relative |

seniority positions shall be determined by ran-

dom draw.

Section 5. Seniority and continuity of service

shall be terminated when an employee quits or

is discharged for cause.

If the employee has not quit or been discharged

for cause, his seniority and continuity of service

may be considered terminated where,

(a) An employee is laid off for a period

exceeding one (1) year;

(b) An employee fails to return to work

after the termination of an authorized leave of

absence;

within three (3) scheduled days after notice to

report to work;

(d) An employee is absent three (3) con-

secutive scheduled days without permission.

Section 6. The Company shall post on bulletin

boards within ninety (90) days after the execu-

tion date of this Agreement a list showing the

hiring date of each employee and will revise the |

same semi-annually. An employee may protest

his seniority position within a period of thirty

(30) days after the posting of such list, and if

dissatisfied with Company action thereon may

assert a grievance under Article XVI; provided

that failure to protest within said thirty (30)

days shall constitute a waiver of any further

right of protest, and the seniority position set

forth in said list shall be conclusively deemed to

be correct.

R. at 000079-65 (emphasis added).

The emotional distress claim thus implicates, and will

require interpretation of, the terms of the CBA in the

analysis of whether Respondent’s conduct, including its

use or non-use of seniority as a criterion in the relevant

employment decisions, was “extreme and outrageous.”

See Thomas, 39 F.3d at 619; Douglas, 877 F.2d at 572 (“If

Illinois Bell’s conduct . . . was authorized under the

collective bargaining agreement. . . . then it would have

been exercising its ‘legal rights in a permissible way.’

Such conduct cannot be characterized as ‘extreme and

outrageous. ...’ ”) (quoting Public Fin. Corp. v. Davis, 360

N.E.2d 765, 768-69 (Ill. 1976)). Since Petitioner’s emo-

tional distress claim is “inextricably intertwined” with

the CBA’s provisions regarding seniority, and its clauses

relating to the promotion and assignment of employees,

his common law tort claim must yield to § 301. Hechler,

481 U.S. at 862 (holding that plaintiff’s tort claim was

preempted because “it is clear that ‘questions of contract

interpretation . . . underlie any finding of tort liability’ ”).

The preemption of Petitioner’s tort claim therefore

allowed Respondent to remove this case and provided a

sufficient basis for denying remand.

III. Because the Court of Appeals Correctly and Nar-

rowly Applied This Court’s Decision in Lingle in

Connection With Petitioner’s Discrimination

Claim, the Purported Conflict With the Decisions

of This Court is Illusory.

Petitioner forecasts that, as a result of the decision

below, the “mere invocation” of a CBA will provide a

successful basis for removal under the LMRA, and that

the decision “will always lead to preemption of both

discrimination and retaliation cases.” (Pet. at 15.) These

assertions distort the import of the Fifth Circuit’s deci-

sion, which is a straightforward and correct application

of Lingle.

A. The Court of Appeals Used the Proper Test for

LMRA Preemption.

Petitioner suggests that, under the decision below,

preemption would occur whenever a party claimed that a

court would have to “look at the CBA.” (Pet. at 6,

emphasis added).) Petitioner multifariously suggests that

the court of appeals’ decision would mandate preemption

in any case when “the CBA could be relevant to the

disposition of a state law claim,”!© when the “employer

did no more than point to a provision in the CBA,”!7 or

when “the employer has asserted justifications based on

the CBA.”!8 Petitioner ultimately predicts that, under the

court of appeals’ decision, “the mere invocation of a CBA

entitles the employer to remove every state-law-based

employee claim to federal court.”!9 Petitioner protests too

much.

The court of appeals followed the law as enunciated

in Lueck and Lingle. The court observed that, “[i]f the

resolution of Reece’s claims will require ‘interpretation’

of the CBA, then the state-law remedies upon which

Reece relies are preempted by § 301 of the LMRA.” (App., |

infra, 2a (citing Lingle, 486 U.S. at 405-06).) The court of |

16 Id. at 11.

17 Td. at 12.

18 Id. at 16.

19 Td. at 19. |

appeals further noted that “the dispute is whether the

CBA must be interpreted in resolving Reece’s claims.”

(Id.)?° These standards accord fully with this Court’s

statement in Lingle that, “if the resolution of a state-law

claim depends upon the meaning of a collective-bargain-

ing agreement, the application of state law . . . is pre-

empted,” 486 U.S. at 405-06, and its statement in Lueck

that LMRA preemption occurs “when resolution of a

state-law claim is substantially dependent upon analysis

of the terms of an agreement made between the parties in

a labor contract.” Lueck, 471 U.S. at 220. See also Rawson,

495 U.S. at 371; Hechler, 481 U.S. at 858. Thus, Petitioner’s

suggestion that the circuit court’s decision “stands vir-

tually alone” in its approach to LMRA preemption does

not survive even cursory scrutiny.?!

Additionally, contrary to Petitioner’s unwarranted

all-or-nothing preemption argument, the circuit court's

decision does not hold that “state law[s] are automat-

ically preempted” whenever a CBA is implicated. (Pet. at

8.) Nor does it stand for the proposition that the LMRA

will “always” preempt a state antidiscrimination claim.

To the contrary, this case presents a narrow, factually

distinct case, the “rare case” to which the Supreme Court

adverted in Lingle when it observed that the assertion of a

20 Id. at 3a (“[T]he CBA would have to be interpreted

because Reece would have to challenge HL&P’s rights under the

CBA.”).

21 Petitioner’s reliance on Hawaiian Airlines, Inc. v. Norris,

114 S. Ct. 2239, 2248 (1994), a case involving the Railway Labor

Act (“RLA”), 45 U.S.C. §§ 151-188 (1988), is misplaced. Norris

purported to rely on the Lingle preemption standard. Thus,

Lingle, along with Lueck, continues to constitute the proper rule

of decision in LMRA preemption cases.

“nonnegotiable” state-law right does not automatically

exempt claims from preemption, and that such claims

may be preempted in certain instances. Lingle, 486 U.S. at

408 n.7. The Fifth Circuit correctly concluded that “[t]he

situation described by the Lingle Court is the situation

presented in this case,” (App., infra, 5a), because Peti-

tioner’s complaints about training opportunities, promo-

tions, and seniority are without merit unless Respondent

is found to have violated the CBA. Petitioner’s theory of

the case, and the particular employment decisions about

which he complains, depend on a construction of his

contractual seniority rights and are therefore preempted

under this discrete set of facts. Id.

B. The Court of Appeals Correctly Followed

Lingle’s Holding That a “Nonnegotiable” State-

Law Right Must Succumb to LMRA Preemption

in Certain Instances.

1. Lingle Contemplated the Preemption of

“Nonnegotiable” Rights.

To the extent Petitioner argues that the result below

was anomalous and that it is “contrary to decisicns of

this Court,”22 he has failed to explain (or even acknowl-

edge) the fact that the court of appeals expressly fol-

lowed, and indeed quoted from,?? this Court’s decision in

Lingle:

Petitioner points to the fact that the Illinois right

to be free from retaliatory discharge is nonnego-

tiable and applies to unionized and nonu-

nionized workers alike. While it may be true

22 Pet. at 8.

23 App., infra, 5a.

that most state laws that are not pre-empted by

§ 301 will grant nonnegotiable rights that are

shared by all state workers, we note that neither

condition ensures nonpre-emption. It is conceiv-

able that a State could create a remedy that,

although nonnegotiable, nonetheless turned on

the interpretation of a collective-bargaining

agreement for its application. Such a remedy

would be pre-empted by § 301. Similarly, if a

law applied to all state workers but required, at

least in certain instances, collective-bargaining

agreement interpretation, the application of the

law in those instances would be pre-empted.

Lingle, 486 U.S. at 407-08 n.7.24 Indeed one wonders how

the application of the law as stated in Lingle could

24 Other courts have applied this passage from Lingle in

accordance with the Fifth Circuit’s treatment of it to find that

“nonnegotiable” rights were preempted. See, e.g., Davis, 21 F.3d

at 868 (holding that LMRA preempted disability discrimination

claim under Missouri Human Rights Act which “would require

an examination of the seniority rights of both Davis and other .

employees under the collective bargaining agreement”); Stikes,

914 F.2d at 1268 (holding that state right to privacy claim, “even

if .. . nonnegotiable in the collective bargaining process,” was

preempted under Lingle); Cole v. General Motors Corp., 641 F.

Supp. 28, 32 (W.D. Mich. 1984) (holding that LMRA preempted

claim under Michigan antidiscrimination statute because

“application of the . . . [state statute] could potentially alter or

abrogate rights and duties which GMC ard the UAW have

collectively bargained for”). Accordingly, to the extent

Petitioner relies on Ramirez v. Fox Television Station, 998 F.2d 743,

749 (9th Cir. 1993), to suggest that the court of appeals’ decision

in this case is aberrant, Respondent respectfully suggests that

Ramirez, in failing even to cite note 7 from Lingle, is out of step

with the prevailing law. See Ramirez, 998 F.2d at 748 (stating,

contrary to Lingle, that the LMRA never preempts “causes of

action which assert nonnegotiable state law rights”) (quotation

ee eae

“threaten[ ] to completely eviscerate the Lingle stan-

dard,” as Petitioner contends.

2. Petitioner’s “Nonnegotiable” Statutory

Right is Preempted in This Case Because

Resolution of the Claim is Substantially |

Dependent Upon an Interpretation of the

CBA.

In order to determine whether Petitioner’s discrimi-

nation claim under the Texas Labor Code is preempted, a

court “must examine whether proof of the state law claim

requires interpretation of [the] collective bargaining

agreement terms.” DeCoe, 32 F.3d at 216. Once again,

preemption occurs “if any of the elements require a con-

struction of the agreement.” Stikes, 914 F.2d at 1268

(emphasis added).?6

To establish a prima facie case under the Texas Labor

Code, Petitioner has the burden of proving (1) that he

was a member of a protected class; (2) that he experi-

enced an adverse employment decision; and (3) that non-

protected employees were treated dissimilarly. See Austin

State Hosp. v. Kitchen, 903 S.W.2d 83, 90 n.9 (Tex. Ct. App. |

1995) (citing Texas Dep’t of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981)). If Petitioner carried this burden,

Respondent would be required to articulate legitimate,

non-discriminatory reasons “sufficient to raise a genuine

issue of fact that its employment action was not the result

marks omitted). Respondent further observes that the seniority

issues central to the instant case were not at issue in Ramirez. Id.

at 745-46.

25 Pet. at 19.

26 See also Leonardis v. Burns Int'l Sec. Servs., Inc., 808 F.

Supp. 1165, 1183 n.24 (D.N.J. 1992).

of discriminatory animus but instead was motivated by a

legitimate reason.” Id. The burden would then shift back

to the employee “and merge[ ] with [his] ultimate burden

of persuading the trier of fact that the employer’s prof-

fered reason for its action is mere pretext and that [he]

has been the victim of unlawful discrimination.” Id. Fur-

thermore, the Texas Supreme Court has acknowledged

that the standard for recovery under the statute requires

proof of “but for” causation. See Texas Dep’t of Human

Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995) (stating in

whistleblower case that the causation standard in this

“and similar cases” is whether, “without it [the protected

trait or conduct], the employer’s prohibited conduct

would not have occurred when it did”).

Petitioner’s burden of establishing an adverse

employment action requires, as a threshold, proof that he

had a right or entitlement to a promotion or other oppor-

tunity. Answering the question whether Petitioner pos-

sessed any such entitlement requires consideration of the

provisions of the CBA that provide that “[sJelection, pro-

motion . . . transfer and/or assignment of Head Jour-

neymen .. . shall be within the sole discretion of the

Company, and . . . [c]onsideration may include, but is not

limited to, ability, skill, qualifications, performance,

seniority, attendance, and conduct,” and that “[e]xcept as

to Head Journeymen . . . in the event of promotions

. where ability, skill and qualifications are equal,

seniority shall govern.” (CBA, art. XVII, § 3, R. at 000077

(emphasis added).) Petitioner also alleges that “he has

been denied the requested training and thereby denied

access to promotional opportunities within HL&P because

of his race”?” and that he “was denied a promotion” when

“a white employee with less seniority than Plaintiff, John

Malarka, was promoted.” (R. at 000053 (emphasis added).)

Additionally, Petitioner asserts that he has “been denied

the opportunity to train in the Fiber Optics program” and

“has been denied the opportunity to attend ‘Trou-

bleshooting Class.’ ” (Id.)

The CBA delineates seniority as one of several factors

for consideration in promotion analyses. (R. at 000085,

000079-000065.) Consequently, in order to evaluate the

disparate treatment prong of Petitioner’s prima facie

case, and in order to determine whether Respondent’s

reasons for the adverse employment decisions were pre-

textual, see Austin State Hosp., 903 S.W.2d at 90 n.9, a court

would have to determine whether Petitioner had a con-

tractual right to the promotion and training opportunities

at issue, and whether Respondent somehow abused its

contractual right to make promotion and work assign-

ment decisions, including the weight, if any, to be

afforded to seniority. Moreover, deciding “but for” causa-

tion under Hinds would require a court to undertake a

determination of whether, due to the seniority preference

Petitioner deems controlling, he would have been pro-

moted and given the requested training if race were not

allegedly a factor in the employment decisions at issue.

Hinds, 904 S.W.2d at 636. In sum, it is simply not possible

for Petitioner to establish a cause of action under the

Texas Labor Code claim in this case without interpreting,

and perhaps even attempting to supersede, the terms of

the CBA.

27 R. at 000054.

This conclusion flows from the fact that Petitioner’s

Texas Labor Code claim is expressly based on Respon-

dent’s supposed failure to follow the dictates of the

CBA’s seniority provisions. (See R. at 000027 (stating that

a white employee “with less seniority than Plaintiff .. . was

promoted”) (emphasis added).) As Professor White noted

in discussing an analogous case, “[w]hen . . . the

employer denies retaliation and claims its actions were

dictated by the contract, an analysis of the contract neces-

sarily must occur.” White, 41 Ala. L. Rev. at 431. More-

over, Professor White has observed that “[w]Jere a court to

examine the seniority system and find there were posi-

tions available, the asserted motivation should be

deemed pretextual. But it is precisely this inquiry that sec-

tion 301 forbids. Whenever such analysis must occur, the claim

ought to be preempted.” Id. n.232 (emphasis added). In the

case at bar, Respondent denied Petitioner’s allegations

and contended that “[a]ll actions taken by HL&P concern-

ing Reece’s employment, including his promotional

opportunities, were for reasons other than Reece’s race.”

(R. at 000010.) Under the narrow factual setting of this

case, because Petitioner’s theory of recovery is tied to

seniority, training, and promotions, the LMRA preempts

Petitioner’s race discrimination claim under Lingle. 486

U.S. at 407-08 n.7.

IV. Petitioner’s Objections to an “Undesirable Litiga-

tion Dynamic” Resulting from Avco Do Not Justify

Granting the Writ.

Petitioner finally contends that the Court should

reconsider its post-Avco%® labor law jurisprudence.

28 390 U.S. at 560.

Indeed, he apparently seeks to have this Court overrule

Avco itself. In particular, Petitioner laments the fact that

Avco allows a defendant to remove a state court suit when

the claims asserted would require the interpretation of a

CBA. This result, he claims, “substantially increas[es] the

workload of the federal courts.” (Pet. at 19; id. at 23

(“[T]he result is that many more cases are imposed on the

federal dockets (and an employee-plaintiff’s litigation

burdens become all the greater) than there ought to

be.”).)?9

Petitioner’s argument is unfounded. In Local 174,

Teamsters v. Lucas Flour Co., this Court observed that “the

subject matter of § 301(a) ‘is peculiarly one that calls for

uniform law.’ The possibility that individual contract

terms might have different meanings under state and

federal law would inevitably exert a disruptive influence

upon both the negotiation and administration of collec-

tive agreements.” 369 U.S. at 103-04 (citations omitted).

Moreover, “in enacting § 301 Congress intended doctrines

29 Petitioner also bemoans the “employer’s litigation

advantage” arising from the fact that “[f]requently . . . the

employee-plaintiff’s lawyer is a state court practitioner who

rarely appears in federal court.” (Pet. at 23.) Aside from being a

gross generalization with absolutely no empirical support,

Petitioner’s argument is simply not a basis for granting

Supreme Court review. In the civil context, the federal courts

simply do not concern themselves with the alleged quality or

experience of counsel. Cf. United States v. Cronic, 466 U.S. 648,

665 (1984) (noting that counsel are presumed to be competent

and holding that youth and inexperience of counsel did not

provide basis for claim of ineffective assistance of counsel);

Square Liner 360 Degrees, Inc. v. Chisum, 691 F.2d 362, 374-75 (8th

Cir. 1982) (stating that inexperienced counsel did not deprive

civil litigant of its “ ‘day in court’ ”).

ree Hn le it

of federal labor law uniformly to prevail over inconsis-

tent local rules.” Id. at 104.%° The Supreme Court thus

determined in Lucas Flour that a “state rule that purports

to define the meaning or scope of a term in a contract suit

therefore is preempted by federal labor law,” and in Lueck

the Court extended this rule to cases “alleging liability in

tort.” Lueck, 471 U.S. at 210-11.

In order to guarantee that federal labor law remains

preeminent in § 301 suits and that it was construed con-

sistently, the Court applied Lucas Flour in Avco, 390 U.S.

at 560, to hold that an employer may properly remove a

suit brought in state court asserting claims that are sub-

stantially dependent upon a construction of a CBA

“despite the plaintiff’s failure to plead a federal cause of

action, because the preemptive force of § 301 is so power-

ful as to displace entirely any state cause of action for

violation of contracts between an employer and a labor

organization.” Lingle, 486 U.S. at 406 n.5 (citations and

quotation marks omitted). Thus, the removability of

state-law claims preempted by the LMRA derives directly

from Avco, and Petitioner’s argument regarding an

“undesirable litigation dynamic” amounts to nothing

more than an expression of dissatisfaction with that

result. Obviously, something more substantial than the

rationale offered thus far by Petitioner must be advanced

to justify a request to overrule a holding as well-settled

30 See also Lueck, 471 U.S. at 210-11 (“[T]he policies that

animate § 301. . . require that ‘the relationships created by [a

collective-bargaining] agreement’ be defined by application of

‘an evolving federal, common law grounded in national labor

policy.’ ”) (quoting Bowen v. United States Postal Serv., 459 U.S.

212, 224-25 (1983)) (second alteration by Court).

and widely accepted as the removability principle of

Avco.3!

In addition, if this Court overruled Avco and disal-

lowed the removal of state-law claims preempted by the

LMRA, “all the evils addressed in Lucas Flour would

recur.” Lueck, 471 U.S. at 211. As this Court cogently

explained in Lueck:

The parties would be uncertain as to what they

were binding themselves to when they agreed to

create a right to collect benefits under certain

circumstances. As a result, it would be more

difficult to reach agreement, and disputes as to

the nature of the agreement would proliferate.

Exclusion of such claims ‘from the ambit of

§ 301 would stultify the congressional policy of

having the administration of collective bargain-

ing contracts accomplished under a uniform

body of federal substantive law.’

Id. (quoting Smith v. Evening News Ass‘n, 371 U.S. 195, 200

(1962)). Petitioner offers no reason to doubt the wisdom

of the Lueck Court’s observation.

Finally, the Court should be chary of accepting Peti-

tioner’s invitation to overrule Avco and to diminish the

preemptive effect of § 301 because of the deleterious

31 In support of his anti-Avco argument, Petitioner cites two

cases that are distinguishable from this one. As Petitioner

admits, Oklahoma Tax Commission v. Graham, 489 U.S. 838 (1989),

was “not one involving a CBA,” (Pet. at 21), or even the LMRA,

but rather a suit for the recovery of excise taxes from an Indian

tribe and centered on sovereign immunity issues. Caterpillar Inc.

v. Williams, 482 U.S. 386 (1987), involved the alleged breach of

several individual employment contracts through the

announcement of a layoff. It did not involve tort and statutory

claims pertaining to a current employee’s seniority rights, as

does the instant case.

consequences of this action on “the central role of arbitra-

tion in our ‘system of industrial self-government.’ ”

Lueck, 471 U.S. at 219 (quoting United Steelworkers v. War-

rior & Gulf Navigation Co., 363 U.S. 574, 581 (1960)). As

this Court has declared, “[t]he ordering and adjusting of

competing interests through a process of free and volun-

tary collective bargaining is the keystone of the federal

scheme to promote industrial peace.” Lucas Flour, 369

U.S. at 104. “Grievance and arbitration are important cogs

in the machinery.” Jackson v. Liquid Carbonic Corp., 863

F.2d 111, 121 (1st Cir. 1988), cert. denied, 490 U.S. 1107

(1989). Adopting Petitioner’s argument would raise the

same grave concerns expressed by this Court in Lueck:

Perhaps the most harmful aspect of the Wiscon-

sin decision is that it would allow essentially the

same suit to be brought directly in state court

without first exhausting the grievance pro-

cedures established in the bargaining agree-

ment. The need to preserve the effectiveness of

arbitration was one of the central reasons that

underlay the Court’s holding in Lucas Flour. The

parties here have agreed that a neutral arbitra-

tor will be responsible, in the first instance, for

interpreting the meaning of their contract.

Unless this suit is preempted, their federal right

to decide who is to resolve contract disputes

will be lost.

471 U.S. at 219 (citation omitted). Consequently, the Court

should reject Petitioner’s ill-considered invitation

because, as the First Circuit correctly concluded, “[a]

plaintiff should not be allowed to bypass the grievance

procedures established by the labor contract in a case

where his claims are so clearly dependent on interpreta-

tion of the terms of that contract. Allowing such an end

run would surely undermine the structure of industrial

self-government.”52

CONCLUSION

For the foregoing reasons, the Court should deny the

Writ.

Respectfully submitted,

L. CHAPMAN SMITH

Counsel of Record

» MattTHew P. Eastus

Baker & Botts, L.L.P.

910 Louisiana

Houston, Texas 77002

(713) 229-1234

(713) 229-1522 (Telecopy)

Attorneys for Respondent

32 Jackson, 863 F.2d at 122.

APPENDIX A

RAYMOND L. REECE, Plaintiff-Appellant,

HOUSTON LIGHTING & POWER

COMPANY, Defendants-Appellee.

NO. 95-20646.

United States Court of Appeals,

Fifth Circuit.

April 10, 1996.

Appeal from the United States District Court for the

Southern District of Texas.

Before BARKSDALE, DeMOSS and PARKER, Circuit

Judges.

ROBERT M. PARKER, Circuit Judge:

I. FACTS AND PROCEEDINGS BELOW

Reece is an employee of HL&P, subject to a collective

bargaining agreement (CBA) which contains a mandatory

grievance and arbitration procedure. Reece filed suit

against HL&P in state court, alleging that, on the basis of

his race, he was (1) denied promotions and training; (2)

retaliated against for engaging in a protected activity; and

(3) subjected to the intentional infliction of emotional

distress. Reece never filed a grievance under the CBA,

and the time for doing so has run.

HL&P answered and removed the case to federal

court. The district court denied Reece’s motion to

remand, concluding that § 301 of the Labor Management

Relations Act (LMRA) preempted Reece’s causes of

action. See 29 U.S.C. § 141, et seq. The district court then

granted HL&P’s motion for summary judgment, finding

that Reece’s claims were barred because of his failure to

exhaust his mandatory administrative remedies under the

CBA.

Reece appeals only the remand issue.

Il. ANALYSIS

At issue is whether the district court properly con-

cluded that § 3401 of the LMRA preempted Reece’s

claims. Preemption is a question of law reviewed de

novo. Baker v. Farmers Elec. Coop., Inc., 34 F.3d 274, 278

(5th Cir. 1994). If the resolution of Reece’s claims will

require “interpretation” of the CBA, then the state-law

remedies upon which Reece relies are preempted by § 301

of the LMRA. Lingle v. Norge Div. of Magic Chef, Inc., 486

U.S. 399, 108 S. Ct. 1877, 100 L.Ed.2d 410 (1988). Thus, the

dispute is whether the CBA must be interpreted in resolv-

ing Reece’s claims.

A. Discrimination Claim:

To establish a prima facie case of discrimination under

the Texas Labor Code, Reece would have to prove that he

(1) was a member of a protected class; (2) suffered an

adverse employment action; and (3) was treated dis-

similarly from the non-protestant employees. Farrington

v. Sysco Food Serv., Inc. 865 S.W.2d 247, 251 (Tex. App. -

Houston [1st Dist.] 1993, writ denied). If Reece were to

establish a prima facie case, HL&P would then have the

burden of articulating a legitimate, non-discriminatory

reason for the allegedly unequal treatment. Id. Then the

burden would shift back to Reece to prove that the articu-

lated reason was a pretext for unlawful discrimination.

Id.

Reece’s discrimination claim turns on questions of

promotion, seniority, and assignment to training pro-

grams, all of which are provided for in the CBA. HL&P

will undoubtedly rely on the CBA as its legitimate, non-

discriminatory reason for Reece’s treatment. When Reece

then attempts to show that HL&P’s stated reason is pre-

textual, the CBA would have to be interpreted because

Reece would have to challenge HL&P’s rights under the

CBA. Thus, the interpretation of the CBA “is made neces-

sary by an employer defense.” Rebecca Hanner White,

Preemption of State Law Claims: A Model for Analysis, 41

Ala. L. Rev. 377, 427 (1989).

B. Intentional Infliction of Emotional Distress Claim:

For Reece to sustain his claim of intentional infliction

of emotional distress under Texas law, he must prove that

(1) HL&P acted intentionally or recklessly; (2) HL&P’s

conduct was extreme and outrageous; (3) such conduct

caused emotional distress; and (4) such distress was

severe. Baker, 34 F.3d at 280. In order to evaluate whether

HL&P’s conduct was “outrageous.” the conduct must be

measured against the CBA.

Thus, the resolution of Reece’s claims will require

interpretation of the CBA. Therefore, the claims are pre-

empted by § 301 of the LMRA.

We acknowledge that the Ninth Circuit has taken a

much more lenient view of preemption of state law dis-

crimination claims. See, e.g., Ramirez v. Fox Television Sta-

tion, Inc., 998 F.2d 743, 748 (9th Cir. 1993) (“In every case

in which we have considered an action brought under the

California Employment Act, we have held that it is not

preempted by section 301.”) (collecting cases). Neverthe-

less, we find that Lingle mandates our analysis.

This result is strengthened by the policies behind

preemption in this context. The Supreme Court has recog-

nized the unique need for uniformity in the interpretation

of labor contracts:

The possibility that individual contract terms

might have different meanings under state and

federal law would inevitably exert a disruptive

influence upon both the negotiation and admin-

istration of collective agreements. Because nei-

ther party could be certain of the rights which it

had obtained or conceded, the process of nego-

tiating an agreement would be made immea-

surably more difficult by the necessity of trying

to formulate contact provisions in such a way as

to contain the same meaning under two or more

systems of law which might someday be

invoked in enforcing. . . . The ordering and

adjusting of competing interests through a pro-

cess of free and voluntary collective bargaining

is the keystone of the federal scheme to promote

industrial peach. State law which frustrates the

effort of congress to stimulate the smooth func-

tioning of that process thus strikes at the very

core of federal labor policy.

Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04,

82 S. Ct. 571, 577, 7 L.Ed.2d 593 (1962) (citations omitted).

[8] Reece argues that the right to be free of discrimi-

nation is a non-negotiable state-law right that cannot be

altered or waived by agreement. Nevertheless, Lingle fore-

closes such an argument: “It is conceivable that a State

could create a remedy that, although non-negotiable,

nonetheless turned on an interpretation of a collective-

bargaining agreement for its application. Such a remedy

would be pre-empted by § 301.” Lingle, 486 U.S. at 407 n.7,

108 S. Ct. at 1882 n.7. The situation described by the Lingle

Court is the situation presented in this case.

The district court’s denial of the motion to remand is

therefore AFFIRMED.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RAYMOND REECE §

Plaintiff :

VS. § CIVIL ACTION NO.

HOUSTON LIGHTING & § H-95-1025

POWER CO., §

Defendant :

MEMORANDUM AND ORDER

Pending before the Court in the above referenced

action alleging employment discrimination in promotion

and training based on race is Defendant Houston Light-

ing & Power Company’s motion for summary judgment

for failure to exhaust administrative remedies (instru-

ment #15).

This Court has previously held that the claims of

Plaintiff Raymond Reece, employed by Defendant as a

head cable splicer and subject to a collective bargaining

agreement (“CBA”), are preempted by the Labor Manage-

ment Relations Act (“LMRA”), 29 U.S.C. § 185(a) (1988).

The CBA includes a mandatory grievance and arbitration

procedure as the exclusive remedy for violations of the

CBA.33 Moreover the CBA requires that a grievance must

be filed within five days, and that any grievance not filed

within the proscribed period “shall be conclusively

33 CBA, Art. XVI, §§ 1-2, 4.

deemed to have been waived.” CBA, Art. XVI § 3. “as a

general rule in cases to which federal law applies, federal

labor policy requires that individual employees wishing

to assert contract grievances must attempt use of the

contract grievance procedure agreed upon by the

employer and union as a mode of redress [emphasis

added].” Republic Steel Corp. v. Maddox, 379 U.S. 650, 652

(1965). See also Thomas v. LTV Corp., 39 F.3d 611, 621 (5th

Cir. 1994) (“[I]f the arbitration-and-grievance proceeding

is the exclusive remedy for breach of the CBA, the

employee may not sue his employer under section 301

until completion of the proceeding”); Strachan v. Union

Oil Co., 768 F.2d 703, 704 (5th Cir. 1985) (“The law is

completely clear that employees may not resort to state

tort or contract claims in substitution for their rights

under the grievance procedure in a collective bargaining

agreement.”); Ross v. Runyon, 858 F. Supp. 630, 634 (S.D.

Tex. 1994) (“Before bringing suit, the employee must at

least attempt to exhaust the grievance and arbitration

procedures established by the bargaining agreement.”)

Defendant argues that Reece’s failure to file a timely

grievance and to exhaust these exclusive remedies under

the CBA, which constitutes a violation of the CBA,%

waives his right to pursue his claims and requires that

summary judgment be granted to Defendant and that

these now untimely claims be dismissed with prejudice.

See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563

(1976) (“unless [the bargaining unit employee] attempted

to utilize contractual procedures for settling his dispute

with his employer, his independent suit against the

34 CBA, Art. XVI, §§ 1-4.

employer in District Court would be dismissed”); Parham

v. Carrier Corp., 9 F.3d 383, 392 (5th Cir. 1993) (“we render

a take-nothing judgment against Parham on his breach of

collective bargaining agreement claims, for failure to

invoke the grievance procedures required under the

CBAs”); Strachan, 768 F.2d at 706-07 (affirming summary

judgment for employer where state tort claims were pre-

empted by federal law and employees failed to exhaust

grievance procedures).

Conceding that if the LMRA preempts his claims

because they require interpretation of the CBA, then he

was required to exhaust grievance procedures established

by the CBA, Plaintiff responds that pursuant to a continu-

ing violation theory of discrimination, he has exhausted

the exclusive grievance and arbitration procedures estab-

lished by the collective bargaining agreement. On March

12, 1990, he filed a Charge of Discrimination (No. 330 90

1276) alleging that he was subjected to different terms

and conditions of employment because of his race. He

also filed a grievance against Defendant for violations of

the CBA, Article XV § 6, which was found by the Arbitra-

tor to lack merit. He provides copies of both. Plaintiff

filed a lawsuit, Raymond L. Reece v. Houston Lighting and

Power Co., 234th Judicial District Court, Harris County,

Texas, which was resolved by a settlement agreement and

a final release on January 5, 1993. Plaintiff filed another

Charge of Discrimination on April 18, 1994, alleging that

since January 4, 1993, he had been retaliated against for

having filed a lawsuit based on a previous charge of

discrimination and had been denied training and promo-

tions because of his race. He points out various instances

of racial discrimination in training and promotion against

blacks at HL&P.

Plaintiff notes that to establish a continuing violation

he must show that the violation was part of a continu-

ously maintained illegal employment practice. Ross, 858

F. Supp. at 637; Perez v. Laredo Junior College, 706 F.2d 731,

734 (Sth Cir. 1983), cert. denied, 464 U.S. 1042 (1984). He

has shown the history of his charges and the application

of an illegal policy toward him and others of his race.

Moreover since the settlement of his first lawsuit in Janu-

ary 1993, he has been passed over eight times for a

promotion to crew leader/foreman positions for which he

was qualified and which were assigned to white males,

and he was demoted for a longer time for falsifying

company documents and misuse of company assets than

was a white male who tested positive of drug use. He

notes that the settlement agreement required Defendant

to expunge his personnel file of the Firm and Final Warn-

ing issued to him on February 5, 1990, but no expunge-

ment took place. He therefore insists that fact issues exist

as to whether Plaintiff exhausted his remedies under the

CBA under a continuing violation theory.

Alternatively he argues that an employee does not

have to exhaust available grievance procedures if exhaus-

tion of those remedies would be futile. Parham, 9 F.3d at

390-91; Rabelais v. Dresser Indus., Inc., 566 F.2d 518, 519

(Sth Cir. 1978). An employee has the burden of producing

some evidence that use of the grievance procedure would

be futile. Parham, 9 F.3d at 391. Accordingly Plaintiff

points out that his grievance and first Charge of Discrimi-

nation were based on the CBA, Article XV, § 6, and that

Defendant has asserted that the same provision governs

10a

Plaintiff’s allegations here. Moreover he presents a por-

tion of a letter dated July 25, 1990 from the Union’s*5

legal counsel in reference to that part of the CBA:

Moreover, we have, in the past arbitrated this

issue, an issue indistinguishable from your cli-

ent’s grievance, and have done so without suc-

cess. In other words not only does that contract

language* appear fairly clear, but an Arbitrator

has interpreted that language so as to render

your client’s grievance without merit.

After reviewing the record, the Court finds that

Plaintiff has not pleaded a continuing violation in his

original petition, which has not been superseded. Instead

his original petition references the Charge of Discrimina-

tion that he filed with the Equal Employment Oppor-

tunity Commission and the Texas Commission on Human

Rights on April 18, 1994, Charge No. 330942039, attached

as exhibit A, and the subsequent Notice of Right to Sue

letter. That charge focuses on an April 18, 1994 denial of

promotion to foreman because of his race and in retalia-

tion for filing the lawsuit. The petition further alleges

ongoing failure to train on July 25, 1994 in retaliation for

filing the April 18, 1994 charge. As its third and final

allegation, the petition asserts that on August 9-11, 1994

35 The International Brotherhood of Electrical Workers

36 The Court notes that this letter refers to grievance filed

by Plaintiff limited to his demotion from the status of “Head”

Journeyman, to that of simply Journeyman.

The language referred to is the CBA’s Article XV, § 6,

“selection, promotion, demotion, transfer and/or assignment of

Head Journeymen and Head Operators .. . [are] within the sole

discretion of the Company.”

lla

Plaintiff was denied the opportunity to attend a “Trouble-

shooting Class” because of race and retaliation.

The Court notes that a plaintiff cannot use a continu-

ing violation theory “to resurrect claims about discrimi-

nation concluded in the past... . ” McGregor v. Louisiana

State University Bd. of Supervisors, 3 F. 3d 850, 867 (5th Cir.

1993), cert. denied, 114 S. Ct. 1103 (1994). Plaintiff’s earlier

claims were administratively exhausted, then settled dur-

ing a lawsuit with a full and final release executed. Sec-

ond, there is no mention in the petition of the previous

charges on which he sought to exhaust the grievance

procedure under the CBA. Moreover retaliation is a dis-

tinct basis for alleging discriminatory conduct, one never

presented to the Arbitrator. Thus the Court rejects Plain-

tiff’s continuing violation theory, apparently raised for

the first time in response to Defendant’s motion for sum-

mary judgment, as a means to circumvent the exhaustion

requirement.

Nor does Plaintiff, who made no effort to exhaust his

intra union remedies,37 make sufficient showing of futil-

ity to excuse his failure to attempt to use the grievance

and arbitration procedure this time. Plaintiff makes no

showing that the union officials who would hear his

grievance were so hostile that he could not hope to obtain

a fair hearing on his claims or that the grievance pro-

cedures would be inadequate or that they would unrea-

sonably delay his opportunity to obtain judicial review.

37 It is clear from Plaintiff’s earlier grievance that he was

fully aware of the need to exhaust remedies under the CBA.

12a

While the letter sent by the union counsel did not encour-

age Plaintiff to expect a good result, it was limited to his

challenge to his demotion from the Head Journeyman

position and constituted a realistic assessment of that

narrow issue in light of the clear and unambiguous lan-

guage of the CBA giving the Company complete discre-

tion. By itself, without any effort on Plaintiff’s side to

attempt to use the exclusive grievance and arbitration

remedies for his new and largely different claims, the

letter cannot excuse Plaintiff from mandatory exhaustion

requirements. Otherwise anyone with an unlikely chance

of success could argue futility. Noting that “Congress has

expressly approved contract grievance procedures as a

preferred method for settling disputes .. . ,” and that the

courts have held that an employee must have at least

attempted to use them before initiating a lawsuit, the

Fifth Circuit has stated, “The futility exception requires

exactly that — futility. Before a plaintiff may safely disdain

available grievance procedures, invoking those pro-

cedures must truly be futile: not annoying bureaucratic,

or unpromising, but futile. An employee has the burden

of producing some evidence that resort to available griev-

ance procedures would in fact be futile: his mere subjec-

tive belief or conclusory assertion would not suffice.”

Parham, 9 F.3d at 391 (emphasis added).

Accordingly, the Court

ORDERS that Defendant’s motion for summary judg-

ment is GRANTED and that Plaintiff’s claims are DIS-

MISSED with prejudice for failure to exhaust

administrative remedies.

13a

SIGNED at Houston, Texas, this 8th day of August,

1995.

MELINDA HARMON /S/

UNITED STATES DISTRICT JUDGE

14a

APPENDIX C

IN THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RAYMOND REECE, §

Plaintiff, :

vs. § CIVIL ACTION NO.

HOUSTON LIGHTING & § H-95-1025

POWER CO., §

Defendant. :

ORDER

Pending before the Court in the above referenced

action alleging employment discrimination in promotion

and training based on race are, inter alia, Plaintiff Ray-

mond Reece’s motion to amend interlocutory order

(instrument #7), Plaintiff’s motion for reconsideration of

the Court’s denial of his motion for remand (#8), Plain-

tiff’s request for oral hearing on his motion for recon-

sideration (#9), and Plaintiff’s unopposed motion to stay

ruling on Defendant Houston Lighting & Power’s motion

for reconsideration (#17). This action was removed on the

basis of complete preemption under § 301 of the Labor

Management Relations Act (“LMRA”), 29 U.S.C. §§ 185 et

seq., because Plaintiff is a bargaining unit employee and

his claims require interpretation of the collective bargain-

ing agreement (“CBA”). The Court denied Plaintiff’s

motion to remand for the same reason on April 30, 1995.

15a

Plaintiff requests amendment of the Court’s order

denying remand so that it can be immediately appealed.

Because the matter is one of established law in this Cir-

cuit and because this Court finds no good reason for

piecemeal litigation and delay in the instant suit, it denies

the motion to amend its order.

Plaintiff moves the Court to reconsider its order

denying remand because he asserts that his state-law

claims for intentional infliction of emotional distress and

race discrimination do not require interpretation of provi-

sions of the CBA.

After reviewing the record and the applicable law,

this Court has not changed its mind that removal was

proper because of complete preemption of the LMRA.

Plaintiff complains that Defendant’s refusal to promote

him to foreman or to assign him to certain training classes

alone caused him emotional distress. Article XV, § 6 of the

CBA governs Defendant's exclusive, discretionary right

to select, promote, demote, transfer or assign head cable

splicers after consideration by Defendant or “ability, skill,

qualifications, performance, seniority, attendance and

conduct,” and with a right to file a grievance reserved to

Plaintiff. To sustain a claim for emotional distress in

Texas, a plaintiff must prove that (1) the defendant acted

intentionally or recklessly, (2) that the defendant's con-

duct was extreme and outrageous, (3) that defendant's

conduct caused the plaintiff’s emotional distress, and (4)

that the emotional distress was severe. Tidelands Auto-

mobile Club v. Walters, 699 S.W.2d 939, 942 (Tex. App. -

Beaumont 1985, writ ref’d n.r.e.). Thus as the alleged sole

cause of his emotional distress, Defendant’s refusal to

promote Plaintiff or assign him to requested training

l6a

must be extreme or outrageous to prevail on his claim.

Because the emotional distress claim is unavoidably and

inextricably intertwined with Defendant’s conduct in fail-

ing to promote or assign Reece where Reece desired, the

essential element of extreme and outrageous conduct to

establish intentional infliction of emotional distress impli-

cates the provisions of the CBA that give Defendant the

right to promote and to assign training. Thus the state

law claim is preempted. Baker v. Farmers Elec. Coop., 34

F.3d 274 (5th Cir. 1994); see also Hirras v. National R.R.

Passenger Corp., 44 F.3d 278, 283 (5th Cir. 1995) (“[I]f a

CBA [can] be interpreted to give an employer the right to

engage in conduct that is the subject of an emotional

distress claim, an interpretation of the right granted by

the CBA is necessary to the resolution of that claim,”

citing Baker, 34 F.3d at 280). Because Plaintiff’s claim

involves questions of promotability, seniority, and work

assignments, it is inextricably intertwined with terms of

the CBA that give Defendant the exclusive discretionary

right to determine which employees will be promoted or

trained. Medrano v. Excel Corp., 985 F.2d 230, 233 (5th Cir.),

cert. denied, 114 S. Ct. 79 (1993).

For these reasons the Court

ORDERS that Plaintiff's motion to amend interlocu-

tory order and motion for reconsideration are DENIED.

The Court further

ORDERS that Plaintiff’s request for oral hearing and

motion to stay ruling are MOOT.

17a

SIGNED at Houston, Texas this 24th day of July, 1995.

MELINDA HARMON /S/

UNITED STATES DISTRICT JUDGE

RAYMOND REECE, §

Plaintiff, :

bir § CIVIL ACTION NO.

HOUSTON LIGHTING & : H-95-1025

POWER CO., :

Defendant. §

ORDER

Pending before the Court in the above referenced

action alleging denial of the promotion and work assign-

ments in violation of state law is Plaintiff Raymond

Reece’s motion for remand (instrument #4). Because this

Court agrees that Plaintiff’s claims require interpretation

in the collective bargaining agreement and are therefore

preempted by section 301 of the Labor Management Rela-

tion Act (“LMRA”), 29 U.S.C. § 185(a), the Court

ORDERS that the motion is DENIED.

SIGNED at Houston, Texas this 30th day of April,

1995.

MELINDA HARMON /S/

UNITED STATES DISTRICT JUDGE

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